Martin v. Murphy

• Decision Date: 05 November 1891
• Citation: 28 N.E. 1118,129 Ind. 464
• Parties: Martin v. Murphy.
• Court: Indiana Supreme Court

129 Ind. 464

28 N.E. 1118

Martin

v.Murphy.

Supreme Court of Indiana.

Nov. 5, 1891.

Appeal from circuit court, Washington county. Affirmed in part and reversed in part.

Action by Robert W. Martin against Charles W. Murphy for injunction and damages. Demurrer by defendant. Sustained. Plaintiff appeals.

Voyles & Masterson and Asa Elliott, for appellant. Zaring & Hottel, for appellee.

McBRIDE, J.

The only errors assigned in this case are on the action of the circuit court in sustaining demurrers to each paragraph of the complaint. The complaint is in two paragraphs. By the first paragraph the appellant seeks to have the appellee enjoined from practicing medicine in the town of Salem, and by the second to recover liquidated damages for alleged breach of a contract not to practice medicine at that place. The contract is in writing, and is made a part of each paragraph of the complaint. It is as follows: ‘Salem, Washington county, Indiana, October 1st, 1887. Articles of agreement entered into by Charles W. Murphy, of the first part, and Robert W. Martin, of the second part, as follows, viz.: Whereas, Charles W. Murphy is now and has been engaged in the practice of medicine in Salem and vicinity, and, connected with said practice, said Murphy possesses office, consisting of certain office furniture, and necessary to carry on said practice, and together with a stock of medicines contained in said office, said Charles W. Murphy hereby agrees and acknowledges himself duly and firmly bound in a bond of $300, to be duly forfeited and paid to said Robert W. Martin within one year from date of this bond: Now, the conditions of this bond are as follows: That the said Charles W. Murphy shall this day deliver to the said R. W. Martin all of said office furniture, which shall consist of the following articles: * * * Said C. W. Murphy agrees to practice medicine no more in Salem after January 1st, 1888, the practice and profits thereof to go to R. W. Martin, together with all of the drugs and medicines in said office; and said C. W. Murphy further agrees to entering into a partnership under the firm name of Drs. Murphy and Martin, said partnership to continue till the 1st day of January, 1888, during which time the said C. W. M. agrees to use his best efforts to transfer his patronage in said practice to said R. W. Martin; and the profits of said partnership and practice shall be divided as follows: Two books shall be kept, and the accounts made by each partner shall be kept separate, and each partner shall at the close of said partnership be entitled to the different amounts charged in his book. C. W. Murphy. This was not signed by Martin, but immediately following it is a second part of the contract, signed by Martin alone, agreeing to pay the sum of $175 absolutely, and $100 conditionally, as the consideration for the preceding agreement of Murphy, and specifying the terms of payment. The contract is unique, and its construction can hardly afford a precedent for the construction of other contracts, as it is highly improbable that another like it in all respects will ever be executed.

The rulings of the circuit court sustaining separate demurrers to each paragraph of the complaint present very different questions. The appellee argues that the contract, being in restraint of trade, is not sufficiently specific as to time, and is unreasonable; (2) that the agreement shows upon its face that the time during which the appellee agreed not to practice medicine in Salem had expired before he resumed practice; (3) that the contract shows no consideration for the agreement not to practice, and, (4) as to the first paragraph of complaint, seeking an injunction, the complainant had a specific remedy fixed by the contract, to which he is limited, and cannot, therefore, have relief by injunction.

We think the position of the appellee with reference to the first paragraph is well taken. Generally, one who shows the violation of a valid contract between him and another, binding the other not to pursue a given occupation, and shows that by such violation of contract he is injured, is entitled to an injunction restraining the offending party. This is upon the ground that, from the nature of such a case, just and adequate damages cannot be estimated for a breach of the covenant. Baker v. Pottmeyer, 75 Ind. 451-460. The parties to such a contract may, however, by its terms, agree upon stipulated damages, which may be recovered for a breach of its conditions, instead of leaving that question open, uncertain, and undetermined. When it appears that they have thus agreed upon the damages which may be recovered for a breach of the contract, the remedy is the recovery of the sum thus fixed. Johnson v. Gwinn, 100 Ind. 466;Duffy v. Shockey, 11 Ind. 70. Where the party...